Nairobi has yet to ratify the International Convention for the Protection of all Persons from Enforced Disappearances (ICPPED), which it signed on February 6, 2006.
As Kenya grapples with increased cases of enforced disappearances, it is emerging that lack of a specific law to tackle the crime is worsening an already dire situation.
The Office of the Attorney-General (OAG), with a key mandate to provide policy on administration of justice, in its submission to the National Assembly last year, admitted that there is no definition of the phrase “enforced disappearance” in Kenyan law.
“There is no national legislation that criminalises or penalises enforced disappearances, and that there are no effective measures in place to prevent enforced disappearances,” the OAG says.
The legal gap exists because Nairobi has yet to ratify the International Convention for the Protection of all Persons from Enforced Disappearances (ICPPED), which it signed on February 6, 2006.
From left (seated, front row): Jamil Longton, Monicah Mwende, Bob Njagi, Dancan Kyalo and Aslam Longton address journalists at the Kenya Human Rights Commission headquarters in Nairobi on February 2, 2025.
Article 2 of the convention defines enforced disappearances as the arrest, detention, abduction or any other form of deprivation of liberty by agents of the state or by persons or groups of persons acting with the authorisation, support or acquiescence of the state. This also includes a refusal by the state to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which places such a person outside the protection of the law.
Hundreds of enforced disappearances that the country is currently grappling with have hallmarks of the above definition, and the lack of a stand-alone law means perpetrators are unlikely to face justice. The admission by the OAG saw a committee of the National Assembly, in a report, and the International Justice Mission-Kenya (IJM-K), push for the enactment of a law to safeguard the rights of Kenyans against the vice. However, there has been little commitment from the government as suspects are preferred wrong charges.
The IJM — a global organisation dedicated to protecting the poor from violence by bringing criminals to justice, restoring survivors and strengthening the criminal justice system — recognised that police abuse of power remains a significant challenge in Kenya’s political and governance system.
The IJM-K says the Kenyan law does not explicitly define or recognise enforced disappearance as a criminal offence, making it difficult to bring the perpetrators to book.
“By implication, this means the offence of enforced disappearance is not recognised under Kenyan law. This undermines any attempt to report, investigate, charge, prosecute such offences,” it says in a document.
Mr Joseph Kariuki, a communications and media lead for the IJM-K, noted that in Kenya enforced disappearance is not recognised as a criminal offence, hence offenders are charged with a lesser crime of abduction.
“The government must ratify this convention to check on cases of enforced disappearance of innocent Kenyans,” said Mr Kariuki.
He gave the example of the Office of the Director of Public Prosecutions (ODPP) that recently gave an update on the case of enforced disappearance of Mohamed Zaid Kidwai, Zulfikar Ahmad Khan, and their driver, Nicodemus Mwania Mwange.
They are claimed to have been abducted by state agencies. In his statement, DPP Renson Ingonga listed charges to be preferred against 15 former law enforcers.
While the DPP “accurately” captured the crime as enforced disappearance, none of the charges listed on the second page of the statement explicitly mentioned enforced disappearance.
“This was not by mistake. The Office of the DPP has in this case come to terms with the reality that enforced disappearance while a crime of grave proportions, and recognised internationally, is not a crime in Kenya when committed in a manner that is not widespread,” IJM-K senior manager Aggrey Juma told the Nation.
The Public Petitions Committee of the National Assembly, in its report to the House on a petition to enact law to criminalise enforced disappearances and prescribe penalties, recognised the importance of the law. “Kenya’s legal framework should be reviewed to incorporate the crime of enforced disappearance,” it said.
While the government pledged to enact such a law over a year ago, there has been little or no movement. On December 11, 2023, then AG Justin Muturi, now Public Service Cabinet Secretary, sought to assure of the government’s commitment to criminalising enforced disappearances.
Mr Muturi, whose son was also a victim of enforced disappearance before he was released, spoke as he pushed for the ratification of the ICPPED as part of Kenyan laws to deal with the vice.
"We pledge to enact comprehensive domestic legislation that explicitly criminalises enforced disappearances and establish robust mechanisms for prevention, investigation, prosecution and victim support,” he said at the 75th anniversary of the Universal Declaration of Human Rights.
His push was on the basis that several loopholes exist and the gaps undermine the reporting, investigation and trial of cases of enforced disappearances.
Mr Muturi gave the government commitment well before his son became a victim in 2024 at the height of a police crackdown on anti-government protests against the high cost of living.
The ICPPED convention was adopted by the UN General Assembly on December 20, 2006, and came into force on December 23, 2010. Although Kenya signed the ICPPED convention on February 6, 2006, it has yet to ratify and make it part of our laws through a standalone legislation.
Mr Muturi, in his recent criticism of the government, noted that his efforts to have the law in place had been frustrated by some individuals in government whose names he did not reveal, noting that when push came to shove, he did not have an option but to go public about it.
“I pushed for this law even before cases of enforced disappearances of Kenyans, including my son, were reported under the Kenya Kwanza regime. So when people start questioning my recent public utterances on the matter, I just sympathise with them,” he said.
Making of such legislation, CS Muturi said, is the collaborative efforts of many stakeholders, the attorney-general included.
The wave of enforced disappearances peaked in June 2024, during protests against the Finance Bill 2024. At the time, human rights abuse against members of the public who were exercising their right to peaceful assembly was reported.
Individuals who spoke out against the state or advocated rejection of the Finance Bill have been reported to have disappeared without a trace, or been arrested, threatened, or wrongfully detained.
Others who were arrested have not been released, while the whereabouts of some individuals remain unknown, according to the Kenya National Commission on Human Rights (KNCHR).
KNCHR reports over 80 cases of enforced disappearances in just six months, with 30 individuals still missing. Although Dr Ruto’s administration has denied these disappearances, testimonies from survivors and CS Muturi implicate state involvement.
“These pledges are not mere words; they are the unwavering threads woven into the fabric of our nation’s future. They embody our steadfast commitment to creating a Kenya where human rights are not just enshrined in documents, but permeate the lives of every citizen,” Mr Muturi, then AG, said.
“As we commemorate the 75th anniversary of the Universal Declaration of Human Rights, let us rededicate ourselves to the pursuit of a just, equitable, and sustainable world for all.
“Together, let’s build a future where human rights are not just aspirations, but tangible experiences for every person, across every border, across the globe.”
